Should Penalty Phase Jury Be Instructed to Consider Both the Defendant’s Chronological and Psychological Age?
November 10th, 2019

CJ 763(i) tells the jury to consider “the defendant’s age at the time of the crime[s]” in deciding whether or not the defendant should be sentenced to death. This factor should permit the jurors to consider the defendant’s chronological and/or psychological age in mitigation.


In Roper v. Simmons (2005) 543 U.S. 551, 570, 125 S. Ct. 1183, 1195-96 the USSC recognized the following sorts of mitigating characteristics with respect to juveniles under 18 years of age:

The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally     reprehensible as that of an adult.” Thompson, supra, at 835, 101 L. Ed. 2d 702, 108 S. Ct. 2687 (plurality opinion). Their own      vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be        forgiven for failing to escape negative influences in their whole environment. See Stanford, 492 U.S., at 395, 106 L. Ed. 2d 306, 109 S.         Ct. 2969 (Brennan, J., dissenting). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character            deficiencies will [**1196]  be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature             qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can          subside.”


Thus, because “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18[]” (Roper, 543 U.S. at 574) the jurors in the penalty phase of a capital case should be permitted to consider characteristics such as those identified in Roper as mitigating factors under CC 765(i).


In other words, the jurors should generally be permitted to consider both the chronological and/or psychological age of the defendant in mitigation. (See People v. Powell (2018) 6 Cal.5th 136, 187 [upholding as “adequate” the trial judge’s modification of CJ 8.85, factor (i), concerning defendant’s age, “to permit the jury to consider defendant’s ‘chronological or psychological age at the time of the crime.’” (Emphasis in original)]; see also People v. Cox (91) 53 C3d 618, 675 [under the “age” factor the defense may rely upon the defendant’s “psychological immaturity”]; cf., People v. Smithey (99) 20 C4th 936 [refusal of requested instruction that mental age of retarded defendant should be considered as evidence of mitigation not error where jury generally instructed to consider defendant’s mental retardation and mental age in deciding appropriate penalty].)


In sum, “just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 116, 102 S. Ct. 869, 877.)


See also Forecite F 8.85(i) Inst 1-3


Sample Instruction 1 (Roper factors):


Defendant was ____ years old at the time of the killing. In determining what mitigating weight to give this fact consider whether [his] [her] youth contributed to any of the following:

  1. A lack of maturity;
  2. An underdeveloped sense of responsibility;
  3. Greater vulnerability to negative influences and outside pressures, including peer pressures.
  4. Transitory rather than fixed personality traits.


Sample instruction 2 (Eddings, Powell, Cox):


Under this factor you may consider the defendant’s psychological immaturity in mitigation.

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